Justice Manual § 9-10.120

The death penalty may not be sought, and no attorney for the Government may threaten to seek it, solely to obtain a more desirable plea negotiating position. Before receiving authorization not to seek the death penalty, the United States Attorney or Assistant Attorney General may not enter binding plea agreements that preclude the pursuit of capital punishment against any defendant subject to review under this Chapter.

The United States Attorney or Assistant Attorney General may, however, agree to submit for review and possible approval, plea agreements relating to conduct that could be or has been charged as a capital-eligible offense. At all times, the United States Attorney or Assistant Attorney General must make clear to all parties that the conditional plea does not represent a binding agreement absent Departmental authorization. The United States Attorney or Assistant Attorney General should not inform the defendant, court, or public whether they recommend authorization of the plea agreement. See J.M. § 9-10.050.

Ordinarily, capital-eligible codefendants should be submitted together for the Department’s review, which assists the evaluation of the defendants’ comparative culpability. However, when a plea agreement is sought to obtain cooperation from a capital-eligible defendant whose testimony is essential to charging other defendants, the United States Attorney or Assistant Attorney General may submit the cooperator’s case for review separate from the potential codefendants. In such circumstances, the United States Attorney or Assistant Attorney General recommendation memo must describe the need for cooperation from the defendant under review and the cooperator’s level of culpability relative to the potential codefendants. If cooperation is sought from a more-culpable defendant against less-culpable potential codefendants, the recommendation memo must justify why additional investigation could not independently develop cases against the less-culpable defendants.

The United States Attorney or Assistant Attorney General should submit, along with other materials required by J.M. § 9-10.080, any proposed plea agreements that precede authorization under this Chapter and provide in the recommendation memo a rationale for approval or denial of the agreement. The agreement will be included among the materials provided to the Committee.

A defendant’s offer to enter a plea that follows authorization to seek the death penalty should follow the process for withdrawal as described in J.M. § 9-10.160.

See J.M. § 9-16.000 for more information on the topic of pleas and plea agreements.